Full Judgment Text
1 apeal43.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.43/2018
Prashant s/o Daulat Korwate
aged 20 years, Occ. Labour,
r/o Chincholi, Tq.Dist. Chandrapur. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Durgapur, Tq. Dist.
Chandrapur. ...RESPONDENT
Mr. A. C. Jaltare, Advocate for appellant.
Mr. A. Madiwale, A.P.P. for respondentState.
CORAM: V. M. DESHPANDE, J.
DATED : 27.03.2018
ORAL JUDGMENT
1. The appellant is convicted by the learned Special Judge
and Additional Sessions Judge, Chandrapur in Special (POCSO)
Case No.68/2015 dated 09.01.2018. He approached to this Court
by presenting this appeal under Section 374 (2) of the Code of
Criminal Procedure. The appeal was admitted on 08.02.2018 and
record and proceedings were called and it was observed that the
application for suspension of substantive jail sentence will be
considered after receipt of the record and proceedings.
On 21.03.2018, the application for bail was placed for
consideration along with record and proceedings. It was noticed
that even during the pendency of the trial, the appellant was not
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on bail and he has already undergone a period of two years in jail
out of seven years' sentence imposed on him. The learned counsel
for the appellant submitted that he is ready to argue the matter
finally and therefore filing of the paper book was dispensed with.
In view of the receipt of the record and proceedings and since the
appellant was in jail, the appeal was taken up today for its final
hearing.
2. By the impugned judgment, the learned Judge of the
Court below convicted the appellant for the offence punishable
under Section 376 (1) of the Indian Penal Code read with Section
3 punishable under Section 4 of the Protection of Children From
Sexual Offences Act, 2002 and was directed to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.3,000/, in
default to suffer simple imprisonment for three months.
3. The appellant was charged for the offence punishable
under Section 363, 376 (2) (J) (N) of the IPC read with Section 5
(L), (6) of the POCSO Act on 29.06.2017 in Special (POCSO) Case
No.68/2015. The appellant denied the charge and claimed for his
trial. To bring home the guilt of the appellant, the prosecution has
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examined in all seven witnesses namely; Sunita (PW1), mother of
the victim, Kistapal Ratnaparkhi (PW2), panch on the spot
panchanama (Exh.26), Victim (PW3), Kailas Pajankar (PW4),
Incharge Head Master of Zilla Parishad School of Chincholi who
proved the documents from Exhs.46 to 48 to prove that the date of
birth of the victim was 11.11.2000, Dr. Ghanshyam Patil (PW5)
examined by the prosecution to prove the Ossification Test Report
(Exh.54), PSI Sangita Kadam (PW6), the investigating officer and
Dr. Jaya Bhongale (PW7) who examined the victim after obtaining
her consent (Exh.20) and proved medical certificate (Exh.65.).
After appreciation of the prosecution case, the learned
Judge of the Court below acquitted the appellant of the offence
punishable under Section 363 of the Indian Penal Code. However,
he was convicted for an offence punishable under Sections 376 (1)
of the IPC read with Section 3 punishable under Section 4 of the
POCSO Act. Hence this appeal.
4. Heard Mr. Jaltare, learned counsel for the appellant
and Mr. Madiwale, learned A.P.P. for the State in extenso. I have
perused the entire record and proceedings with the assistance of
both the learned counsel.
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5. According to the submission of the learned counsel for
the appellant, the prosecution has utterly failed to prove the age of
the victim and consequently, he submits that the victim cannot be
termed as “Child” within the meaning of the POCSO Act. It is his
submission that the prosecution has utterly failed to prove that the
sexual assault was made on the victim. Alternatively, he submits
that the victim was the consenting party. He therefore submitted
that the appeal be allowed.
Per contra, the learned A.P.P. would submit that the
prosecution has proved the date of birth of the victim as
11.11.2000 in view of the documentary evidence as brought on
record and it is proved by Kailas (PW4), incharge Head Master of
the school. He also submitted that in view of the evidence of
Dr.Ghanshyam (PW5), the age of the victim was more than 15
years and less than 16 years. Therefore, the victim was child
within the meaning of the Act. If that be so, according to his
submission, consent if any extended by the victim is of no
consequence and therefore he prayed for dismissal of the appeal.
6. Before adverting to the question as to whether the
victim was a child within the meaning of Section 2 (d) of the Act,
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it would be useful to give in short, the prosecution case as it is
brought on record through the FIR (Exh.18) filed by Sunita
(PW1) mother of the victim.
As per the report (Exh.18) dated 25.04.2015, the first
informant is having two sons Anil and Abhishek. Their ages are 17
years and 4 years respectively. The age of the victim as mentioned
in the FIR is 16 years. The first informant and her husband Suresh
used to work as labours in the agriculture fields. The victim was
admitted at a school known as Siddharth School. She used to
reside at Chokha Mela Hostel. On 21.04.2015, there was a
marriage ceremony in village Chincholi. Therefore, the first
informant had been to the said programme as a cook. That time,
her two sons and daughter were present in the house. Her
husband went for labour work. The first informant came at
5.00 O'clock in the evening, that time every member of the family
was present. At 8.00 O'clock in the night the victim, again whose
age is mentioned as 16 years, without intimating anybody, took
exit from the house by the rear door. Since, she failed to come till
9.00 O'clock, she was searched by the first informant, her husband
and her son at various places. It was also noticed that Rs.1450/
was also missing from the house. It is stated that the victim was in
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habit of leaving the house. Therefore, the first informant thought
that she must have left the house by taking the said money.
During search, it was revealed to her that the victim was having
love affair with the appellant, aged 20 years as disclosed to her by
one Nirasha alias Kiran that she noticed the appellant in the house
of the first informant in her absence. Therefore, the first informant
went to the house of the appellant that time he was not present
and his relatives gave evasive replies to her. Therefore, she lodged
a complaint that the appellant has kidnapped her daughter.
7. PSI Sangita Kadam (PW6) the investigating officer
registered the FIR (Exh.19) lodged by Sunita (PW1) vide Crime
No.33/2015 for an offence punishable under Section 363 of the
IPC. Subsequently, when the victim was traced out, Section 376
of the IPC and the relevant provisions under the POCSO Act were
added. The investigating officer recorded the statements of victim
and also other witnesses. Clothes of both; the appellant and the
victim were seized, the blood samples and the semen sample of
the appellant were also obtained so also vaginal swab of the victim
was also obtained by the investigating officer and the seized
property was forwarded to the chemical analyzer. The
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investigating officer also obtained school leaving certificate from
the Zilla Parishad Primary School, Chincholi. After completion of
the other investigation, the chargesheet was filed.
8. A serious dispute is raised by the learned counsel for
the appellant about the age of the victim. According to the
learned counsel, on the basis of the available evidence, it cannot
be held that the prosecution has proved the age of the victim to
show her as a child beyond reasonable doubt. He submits that the
documentary evidence is wholly unreliable to reach to the
conclusion that the victim was a child.
9. The appellant was charged and is convicted under the
relevant section of the POCSO Act. The Division Bench of this
Court in Ravi Anandrao Gurpude .vs. State of Maharashtra;
reported in 2017 ALL MR (Cri) 1509 , has ruled that the
provisions of the POCSO Act are stringent in nature and since the
enactment is stringent in nature the degree of proof is stricter one.
In the backdrop of the law laid down by the Division
Bench in Ravi Anandrao Gurpude's case supra, the burden is on
the shoulder of the prosecution to prove its case beyond
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reasonable doubt by adducing the clinching evidence that on the
day of the offence, the victim was a child.
10. In order to prove the age, the prosecution is relying on;
(i) the documentary evidence and (ii) the medical evidence in the
nature of ossification test. It would be useful to record here that
the date of birth of the victim is not stated by Sunita (PW1),
mother of the victim so also the victim has not stated in her
evidence what was her date of birth. Not only that, the oral report
(Exh.18) is also totally silent on the said point and in the FIR also,
it is stated on two occasions that the age of the victim is 16 years.
In absence of the date of birth in the substantive
evidence of the victim and her mother, the available date of birth
on record is 11.11.2000, which according to the prosecution is
recorded in the school record.
11. Extracts of Admission and Leaving Register of primary
school at Chincholi (Exh.46 and 47) and school leaving certificate
(Exh.49) of the victim, these three documents are proved by
Kailas (PW4).
Kailas (PW4) is a teacher working at Zilla Parishad
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School, Chincholi since 2005. At the time of deposition before the
Court, he was also holding the post of Incharge Head Master. In
view of the summons, he brought the record of admission and
leaving of the victim in the Court. As per the school record the
name of the victim is registered at Sr. No.426 on 19.06.2006 and
her date of birth is shown as 11.11.2000. The victim left the
th
school on 01.05.2010 after passing 4 standard examination.
Kailas (PW4) brought the original record for perusal of
the Court and photocopy of the original was placed on record
(Exh.46). He also states that during investigation, he gave extract
(Exh.47) to the police . He also gave school leaving certificate of
the victim (Exh.48). It is his deposition that school leaving
certificate (Exh.48) is prepared on the basis of the original record
i.e. entry in the Admission and Leaving Register (Exh.46).
These three documents show that the date of birth is
11.11.2000. The question is whether this documentary evidence
can safely be accepted as conclusive proof of the date of birth.
12. In the crossexamination, Kailas (PW4) has admitted
that the handwriting on extract (Exh.46) belongs to him. He
candidly admitted that the parents of the victim did not produce
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before him any birth certificate either issued by the Gram
Panchayat or the Municipal Council at the time of obtaining
admission in the school nor he made demand of the original birth
certificate of the victim from her parents. Kailas (PW4) volunteers
that he took entry about the date of birth of the victim on the basis
of the entries in Anganwadi centre. However, he did not produce
anything on record about the said Anganwadi where the victim
took her earlier education.
13. Kailas (PW4) was required to admit when the extract
(Exh.46) was confronted to him that there is a overwriting in the
name of father of the victim whose name appears at Sr. No. 426 at
Exh.46. He also admitted that earlier the name of the father of
the victim was written as “Suresh Namdeo” and later on Namdeo
was rounded off and the name “Bala” is inserted. However, he
admitted that the name of father of the victim in the school
leaving certificate (Exh.48) is shown as “Suresh Namdeo”.
14. The law in respect of evidentiary value is no more res
integra in view of the authoritative pronouncement of the Hon'ble
Apex Court in Birad Mal Singhvi .vs. Anand Purohit, reported in
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AIR 1988 SC 1796. The relevant portion in paragraph 15 of the
said authoritative pronouncement is reproduced hereinbelow:
“15. …..To render a document admissible under
Section 35 of the Evidence Act three conditions must
be satisfied, firstly, entry that is relied on must be one
in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by
law. An entry relating to date of birth made in the
school register is relevant and admissible under Section
35 of the Act, but the entry regarding the age of 3
person in a school register is of not much evidentiary
value to prove the age of the person in the absence of
the material on which the age was recorded.”
Time and again the said proposition is reiterated by the
Hon'ble Apex Court in various subsequent pronouncements.
15. While discussing the evidence of Kailas (PW4) it is
noticed that at the time of taking notes of the date of birth of the
victim, the certificate from Gram Panchayat or from the Municipal
Council was not produced before him nor he asked for the
production of the same. What is important to note is that he
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noted the date of birth of the victim as 11.11.2000 on the basis of
the victim's earlier school record from Anganwadi school, which in
my view, will be the primary document insofar as the admission
and leaving extract (Exh.46) is concerned. However, the said
primary document from Anganwadi school is not produced on
record. Therefore, everybody is at loss to know what was the
date of birth that was noted in the earlier school record of the
victim on the basis of which the admission and leaving extract
(Exh.46) was prepared. This assumes importance when in the
crossexamination of Kailas (PW4), the authenticity of the
documents from Exhs.46 to 48 was seriously challenged by the
appellant.
16. In the evidence of Sunita (PW1), it is brought on record
that her husband for obtaining the admission of the victim in the
first standard told the date of birth that too approximately.
Therefore, it is the father of the victim, who firstly disclosed before
any school authority regarding the date of birth of his daughter,
might be approximately. The evidence of father of the victim
would have been useful to see as to what date he had disclosed
firstly before the School authority as the date of birth of his
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daughter i.e. the victim. Surprisingly, father of the victim is not
examined by the prosecution in the present sessions trial. The
record shows that even he was not cited as a witness of the
prosecution. He would have been the best person to throw light
on important aspect of date of birth for determining as to whether
the victim was a child within the preview of the definition as
legislated in the POCSO Act. For not examining or even citing this
best witness to vouchsafe the authenticity of the school record, the
prosecution must suffer.
17. It is established on record through the evidence of
mother of the victim that the birth place of the victim is at village
Waneri, Taluka Sindewahi and there is a Gram Panchayat at the
said village. Though the mother of the victim claims that they did
not make any entry of the birth date of the victim with Gram
Panchayat, she has admitted that Kotwal/Gram Sevak of the Gram
Panchayat, Waneri collected the information about the birth date
from her father after her birth. Obviously, this was done by
Kotwal/Gram Sevak in discharge of his official duty. Since, the
said Gram Sevak has obtained the date of birth of the victim, that
must have recorded in the official records of the gram panchayat
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of Waneri and it would have been the primary evidence since the
public servant was maintaining the date of birth of the victim in
the official records. It was always open for the investigating officer
or for the prosecution to make inquiry with the Gram Panchayat
and could have brought the birth certificate from the said Gram
Panchayat or even it was always open for the prosecution summon
the Secretary of the said Gram Panchayat for producing the
record. Nothing that sort of has been done either by the
investigating officer during the course of investigation or by the
prosecution during the pendency of the trial. Thus, the best
important documentary evidence which would have clinchingly
settled the issue about the date of birth of the victim either in
favour of the prosecution or in favour of the appellant is not
coming on record. No reasons are supplemented by the
prosecution for not placing the said on record. In fact, PSI Sangita
Kadam (PW6) the investigating officer was required to admit the
fact about the existence of Gram Panchayat at Waneri and that she
has not forwarded any letter to the said Gram Panchayat for
collection of the information about the birth date of the victim.
Therefore, the submission of the learned counsel has some grain
that since the said document was in support of the appellant and
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purposefully the said is not brought on record.
18. In view of the aforesaid, this Court is of the view that in
spite of availability of the primary evidence which would have
clinchingly settled the issue about the date of birth, the
prosecution has failed to produce it on record for its appreciation
by the Court. Hence, I have no hesitation in my mind to draw an
inference against the prosecution on the said aspect.
19. The other piece of evidence on which the prosecution
relies for determination of the age is the Ossification Test report
(Exh.54). The said is proved by Dr. Ghanshyam Patil (PW5).
Dr.Patil is a Radiologist at Civil Hospital, Chandrapur. The
Medical Officer of casualty ward referred the victim to him for
conducting ossification test to determine her age. Accordingly, he
performed the ossification test and on examination, as per his
evidence, he concluded that the concerned girl appears to be of
the age in between 15 to 16 years. He states that according to
him, the girl is not less than 14 years and not more than 16 years.
20. Dr. Patil (PW5) is a Radiologist. He has not taken X
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ray of the victim. He states that it is not his duty. From the tenor
of his crossexamination, it appears that the Xray plates on the
basis of which Dr. Patil has formed his opinion were handed over
to the investigating officer. However, he admitted that the Xray
plates are not filed along with the chargesheet. Not only that, PSI
Sangita Kadam (PW6) the investigating officer has stated in her
crossexamination that she is unable to tell where the Xray plates
of the victim are lying.
21. From the evidence of Dr. Patil (PW5), it is clear that he
has not taken Xray. The person who took Xray is not examined
by the prosecution. Further, there is nothing available on record
to show that it is the only Xrays of the victim those were placed
before Dr. Patil on the basis of which he has formed his opinion
and reduced it by drawing the report (Exh.54). Therefore, in my
view, it is hazardous to rely on the testimony of Dr. Patil to
determine the age of the victim.
22. From the report (Exh.18), it is clear that the victim
was in habit of leaving the house. The victim herself has stated
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that she was knowing the appellant and she used to talk with him
and they used to meet regularly within 23 days. There is no
evidence available on record to show that under coercion the
appellant and the victim left her house. Not only that, her
evidence shows that when she was in the company of the
appellant, they stayed for 23 days at the house of the maternal
uncle of the appellant and prior to that for one night they had
stayed at village Tikhamba at the house of the friend of the
appellant. Though the victim states that the appellant established
sexual relations against her will and forcefully, the medical report
(Exh.65) does not show that the victim was having any type of
injury on her person whether on private part or anywhere on her
body. Further, even according to the victim, on the next day of
the sexual relations there was an opportunity for her to disclose
the fact to the persons with whom she came in contact. However,
till the appellant and she were apprehended by the investigating
officer, there was no disclosure on the part of the victim.
23. Dr. Jaya Bhongale (PW7) has clinically examined the
victim after obtaining her consent (Exh.20). She noticed that the
victim's hymen was torn in circumferential shape. She states that
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the hymen rupture was an old one. Not only that she has
admitted that hymen can be ruptured by any other mode than the
sexual intercourse. She further states that merely because hymen
is ruptured, it is not the conclusive proof of sexual intercourse. The
appellant and the victim were apprehended on 25.04.2015 and
the consent of the girl was obtained on 26.04.2015. In view of the
medical evidence, which the Court is required to consider only
because the version of the victim is not inspiring confidence,
shows that the doctor opined that conclusively she cannot state
that there was sexual intercourse.
24. Thus, on reappreciation of the entire prosecution case, I
am of the firm view that the prosecution was unable to come out
of the mist of suspension. The cumulative effect of reappreciation
of date of birth, according to me shows that it would be very risky
to jump to the conclusion about the date of birth. The availability
of the evidence, in my view is too sketchy rather it is highly
insufficient to curtail the liberty of the citizen.
Consequently, I pass the following order.
ORDER
(i) Criminal Appeal No.43/2018 is allowed.
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(ii) Judgment and order of conviction dated
09.01.2018 in Special (POCSO) Case No.68/2015
passed by Special Court, Chandrapur, thereby
convicting the appellant for an offence punishable
under Section 376 (1) of the Indian Penal Code read
with Section 3 punishable under Section 4 of the
Protection of Children From Sexual Offences Act, 2002
is hereby set aside.
(iii) The appellantPrashant Daulat Korwate is
acquitted of the offence punishable under Section 376
(1) of the Indian Penal Code read with Section 3
punishable under Section 4 of the Protection of
Children From Sexual Offences Act, 2002.
(iv) The appellant who is in jail shall be
released forthwith, if not required in any other crime.
JUDGE
kahale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.43/2018
Prashant s/o Daulat Korwate
aged 20 years, Occ. Labour,
r/o Chincholi, Tq.Dist. Chandrapur. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Durgapur, Tq. Dist.
Chandrapur. ...RESPONDENT
Mr. A. C. Jaltare, Advocate for appellant.
Mr. A. Madiwale, A.P.P. for respondentState.
CORAM: V. M. DESHPANDE, J.
DATED : 27.03.2018
ORAL JUDGMENT
1. The appellant is convicted by the learned Special Judge
and Additional Sessions Judge, Chandrapur in Special (POCSO)
Case No.68/2015 dated 09.01.2018. He approached to this Court
by presenting this appeal under Section 374 (2) of the Code of
Criminal Procedure. The appeal was admitted on 08.02.2018 and
record and proceedings were called and it was observed that the
application for suspension of substantive jail sentence will be
considered after receipt of the record and proceedings.
On 21.03.2018, the application for bail was placed for
consideration along with record and proceedings. It was noticed
that even during the pendency of the trial, the appellant was not
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on bail and he has already undergone a period of two years in jail
out of seven years' sentence imposed on him. The learned counsel
for the appellant submitted that he is ready to argue the matter
finally and therefore filing of the paper book was dispensed with.
In view of the receipt of the record and proceedings and since the
appellant was in jail, the appeal was taken up today for its final
hearing.
2. By the impugned judgment, the learned Judge of the
Court below convicted the appellant for the offence punishable
under Section 376 (1) of the Indian Penal Code read with Section
3 punishable under Section 4 of the Protection of Children From
Sexual Offences Act, 2002 and was directed to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.3,000/, in
default to suffer simple imprisonment for three months.
3. The appellant was charged for the offence punishable
under Section 363, 376 (2) (J) (N) of the IPC read with Section 5
(L), (6) of the POCSO Act on 29.06.2017 in Special (POCSO) Case
No.68/2015. The appellant denied the charge and claimed for his
trial. To bring home the guilt of the appellant, the prosecution has
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examined in all seven witnesses namely; Sunita (PW1), mother of
the victim, Kistapal Ratnaparkhi (PW2), panch on the spot
panchanama (Exh.26), Victim (PW3), Kailas Pajankar (PW4),
Incharge Head Master of Zilla Parishad School of Chincholi who
proved the documents from Exhs.46 to 48 to prove that the date of
birth of the victim was 11.11.2000, Dr. Ghanshyam Patil (PW5)
examined by the prosecution to prove the Ossification Test Report
(Exh.54), PSI Sangita Kadam (PW6), the investigating officer and
Dr. Jaya Bhongale (PW7) who examined the victim after obtaining
her consent (Exh.20) and proved medical certificate (Exh.65.).
After appreciation of the prosecution case, the learned
Judge of the Court below acquitted the appellant of the offence
punishable under Section 363 of the Indian Penal Code. However,
he was convicted for an offence punishable under Sections 376 (1)
of the IPC read with Section 3 punishable under Section 4 of the
POCSO Act. Hence this appeal.
4. Heard Mr. Jaltare, learned counsel for the appellant
and Mr. Madiwale, learned A.P.P. for the State in extenso. I have
perused the entire record and proceedings with the assistance of
both the learned counsel.
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5. According to the submission of the learned counsel for
the appellant, the prosecution has utterly failed to prove the age of
the victim and consequently, he submits that the victim cannot be
termed as “Child” within the meaning of the POCSO Act. It is his
submission that the prosecution has utterly failed to prove that the
sexual assault was made on the victim. Alternatively, he submits
that the victim was the consenting party. He therefore submitted
that the appeal be allowed.
Per contra, the learned A.P.P. would submit that the
prosecution has proved the date of birth of the victim as
11.11.2000 in view of the documentary evidence as brought on
record and it is proved by Kailas (PW4), incharge Head Master of
the school. He also submitted that in view of the evidence of
Dr.Ghanshyam (PW5), the age of the victim was more than 15
years and less than 16 years. Therefore, the victim was child
within the meaning of the Act. If that be so, according to his
submission, consent if any extended by the victim is of no
consequence and therefore he prayed for dismissal of the appeal.
6. Before adverting to the question as to whether the
victim was a child within the meaning of Section 2 (d) of the Act,
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it would be useful to give in short, the prosecution case as it is
brought on record through the FIR (Exh.18) filed by Sunita
(PW1) mother of the victim.
As per the report (Exh.18) dated 25.04.2015, the first
informant is having two sons Anil and Abhishek. Their ages are 17
years and 4 years respectively. The age of the victim as mentioned
in the FIR is 16 years. The first informant and her husband Suresh
used to work as labours in the agriculture fields. The victim was
admitted at a school known as Siddharth School. She used to
reside at Chokha Mela Hostel. On 21.04.2015, there was a
marriage ceremony in village Chincholi. Therefore, the first
informant had been to the said programme as a cook. That time,
her two sons and daughter were present in the house. Her
husband went for labour work. The first informant came at
5.00 O'clock in the evening, that time every member of the family
was present. At 8.00 O'clock in the night the victim, again whose
age is mentioned as 16 years, without intimating anybody, took
exit from the house by the rear door. Since, she failed to come till
9.00 O'clock, she was searched by the first informant, her husband
and her son at various places. It was also noticed that Rs.1450/
was also missing from the house. It is stated that the victim was in
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habit of leaving the house. Therefore, the first informant thought
that she must have left the house by taking the said money.
During search, it was revealed to her that the victim was having
love affair with the appellant, aged 20 years as disclosed to her by
one Nirasha alias Kiran that she noticed the appellant in the house
of the first informant in her absence. Therefore, the first informant
went to the house of the appellant that time he was not present
and his relatives gave evasive replies to her. Therefore, she lodged
a complaint that the appellant has kidnapped her daughter.
7. PSI Sangita Kadam (PW6) the investigating officer
registered the FIR (Exh.19) lodged by Sunita (PW1) vide Crime
No.33/2015 for an offence punishable under Section 363 of the
IPC. Subsequently, when the victim was traced out, Section 376
of the IPC and the relevant provisions under the POCSO Act were
added. The investigating officer recorded the statements of victim
and also other witnesses. Clothes of both; the appellant and the
victim were seized, the blood samples and the semen sample of
the appellant were also obtained so also vaginal swab of the victim
was also obtained by the investigating officer and the seized
property was forwarded to the chemical analyzer. The
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investigating officer also obtained school leaving certificate from
the Zilla Parishad Primary School, Chincholi. After completion of
the other investigation, the chargesheet was filed.
8. A serious dispute is raised by the learned counsel for
the appellant about the age of the victim. According to the
learned counsel, on the basis of the available evidence, it cannot
be held that the prosecution has proved the age of the victim to
show her as a child beyond reasonable doubt. He submits that the
documentary evidence is wholly unreliable to reach to the
conclusion that the victim was a child.
9. The appellant was charged and is convicted under the
relevant section of the POCSO Act. The Division Bench of this
Court in Ravi Anandrao Gurpude .vs. State of Maharashtra;
reported in 2017 ALL MR (Cri) 1509 , has ruled that the
provisions of the POCSO Act are stringent in nature and since the
enactment is stringent in nature the degree of proof is stricter one.
In the backdrop of the law laid down by the Division
Bench in Ravi Anandrao Gurpude's case supra, the burden is on
the shoulder of the prosecution to prove its case beyond
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reasonable doubt by adducing the clinching evidence that on the
day of the offence, the victim was a child.
10. In order to prove the age, the prosecution is relying on;
(i) the documentary evidence and (ii) the medical evidence in the
nature of ossification test. It would be useful to record here that
the date of birth of the victim is not stated by Sunita (PW1),
mother of the victim so also the victim has not stated in her
evidence what was her date of birth. Not only that, the oral report
(Exh.18) is also totally silent on the said point and in the FIR also,
it is stated on two occasions that the age of the victim is 16 years.
In absence of the date of birth in the substantive
evidence of the victim and her mother, the available date of birth
on record is 11.11.2000, which according to the prosecution is
recorded in the school record.
11. Extracts of Admission and Leaving Register of primary
school at Chincholi (Exh.46 and 47) and school leaving certificate
(Exh.49) of the victim, these three documents are proved by
Kailas (PW4).
Kailas (PW4) is a teacher working at Zilla Parishad
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School, Chincholi since 2005. At the time of deposition before the
Court, he was also holding the post of Incharge Head Master. In
view of the summons, he brought the record of admission and
leaving of the victim in the Court. As per the school record the
name of the victim is registered at Sr. No.426 on 19.06.2006 and
her date of birth is shown as 11.11.2000. The victim left the
th
school on 01.05.2010 after passing 4 standard examination.
Kailas (PW4) brought the original record for perusal of
the Court and photocopy of the original was placed on record
(Exh.46). He also states that during investigation, he gave extract
(Exh.47) to the police . He also gave school leaving certificate of
the victim (Exh.48). It is his deposition that school leaving
certificate (Exh.48) is prepared on the basis of the original record
i.e. entry in the Admission and Leaving Register (Exh.46).
These three documents show that the date of birth is
11.11.2000. The question is whether this documentary evidence
can safely be accepted as conclusive proof of the date of birth.
12. In the crossexamination, Kailas (PW4) has admitted
that the handwriting on extract (Exh.46) belongs to him. He
candidly admitted that the parents of the victim did not produce
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before him any birth certificate either issued by the Gram
Panchayat or the Municipal Council at the time of obtaining
admission in the school nor he made demand of the original birth
certificate of the victim from her parents. Kailas (PW4) volunteers
that he took entry about the date of birth of the victim on the basis
of the entries in Anganwadi centre. However, he did not produce
anything on record about the said Anganwadi where the victim
took her earlier education.
13. Kailas (PW4) was required to admit when the extract
(Exh.46) was confronted to him that there is a overwriting in the
name of father of the victim whose name appears at Sr. No. 426 at
Exh.46. He also admitted that earlier the name of the father of
the victim was written as “Suresh Namdeo” and later on Namdeo
was rounded off and the name “Bala” is inserted. However, he
admitted that the name of father of the victim in the school
leaving certificate (Exh.48) is shown as “Suresh Namdeo”.
14. The law in respect of evidentiary value is no more res
integra in view of the authoritative pronouncement of the Hon'ble
Apex Court in Birad Mal Singhvi .vs. Anand Purohit, reported in
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AIR 1988 SC 1796. The relevant portion in paragraph 15 of the
said authoritative pronouncement is reproduced hereinbelow:
“15. …..To render a document admissible under
Section 35 of the Evidence Act three conditions must
be satisfied, firstly, entry that is relied on must be one
in a public or other official book, register or record,
secondly, it must be an entry stating a fact in issue or
relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by
law. An entry relating to date of birth made in the
school register is relevant and admissible under Section
35 of the Act, but the entry regarding the age of 3
person in a school register is of not much evidentiary
value to prove the age of the person in the absence of
the material on which the age was recorded.”
Time and again the said proposition is reiterated by the
Hon'ble Apex Court in various subsequent pronouncements.
15. While discussing the evidence of Kailas (PW4) it is
noticed that at the time of taking notes of the date of birth of the
victim, the certificate from Gram Panchayat or from the Municipal
Council was not produced before him nor he asked for the
production of the same. What is important to note is that he
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noted the date of birth of the victim as 11.11.2000 on the basis of
the victim's earlier school record from Anganwadi school, which in
my view, will be the primary document insofar as the admission
and leaving extract (Exh.46) is concerned. However, the said
primary document from Anganwadi school is not produced on
record. Therefore, everybody is at loss to know what was the
date of birth that was noted in the earlier school record of the
victim on the basis of which the admission and leaving extract
(Exh.46) was prepared. This assumes importance when in the
crossexamination of Kailas (PW4), the authenticity of the
documents from Exhs.46 to 48 was seriously challenged by the
appellant.
16. In the evidence of Sunita (PW1), it is brought on record
that her husband for obtaining the admission of the victim in the
first standard told the date of birth that too approximately.
Therefore, it is the father of the victim, who firstly disclosed before
any school authority regarding the date of birth of his daughter,
might be approximately. The evidence of father of the victim
would have been useful to see as to what date he had disclosed
firstly before the School authority as the date of birth of his
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daughter i.e. the victim. Surprisingly, father of the victim is not
examined by the prosecution in the present sessions trial. The
record shows that even he was not cited as a witness of the
prosecution. He would have been the best person to throw light
on important aspect of date of birth for determining as to whether
the victim was a child within the preview of the definition as
legislated in the POCSO Act. For not examining or even citing this
best witness to vouchsafe the authenticity of the school record, the
prosecution must suffer.
17. It is established on record through the evidence of
mother of the victim that the birth place of the victim is at village
Waneri, Taluka Sindewahi and there is a Gram Panchayat at the
said village. Though the mother of the victim claims that they did
not make any entry of the birth date of the victim with Gram
Panchayat, she has admitted that Kotwal/Gram Sevak of the Gram
Panchayat, Waneri collected the information about the birth date
from her father after her birth. Obviously, this was done by
Kotwal/Gram Sevak in discharge of his official duty. Since, the
said Gram Sevak has obtained the date of birth of the victim, that
must have recorded in the official records of the gram panchayat
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of Waneri and it would have been the primary evidence since the
public servant was maintaining the date of birth of the victim in
the official records. It was always open for the investigating officer
or for the prosecution to make inquiry with the Gram Panchayat
and could have brought the birth certificate from the said Gram
Panchayat or even it was always open for the prosecution summon
the Secretary of the said Gram Panchayat for producing the
record. Nothing that sort of has been done either by the
investigating officer during the course of investigation or by the
prosecution during the pendency of the trial. Thus, the best
important documentary evidence which would have clinchingly
settled the issue about the date of birth of the victim either in
favour of the prosecution or in favour of the appellant is not
coming on record. No reasons are supplemented by the
prosecution for not placing the said on record. In fact, PSI Sangita
Kadam (PW6) the investigating officer was required to admit the
fact about the existence of Gram Panchayat at Waneri and that she
has not forwarded any letter to the said Gram Panchayat for
collection of the information about the birth date of the victim.
Therefore, the submission of the learned counsel has some grain
that since the said document was in support of the appellant and
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purposefully the said is not brought on record.
18. In view of the aforesaid, this Court is of the view that in
spite of availability of the primary evidence which would have
clinchingly settled the issue about the date of birth, the
prosecution has failed to produce it on record for its appreciation
by the Court. Hence, I have no hesitation in my mind to draw an
inference against the prosecution on the said aspect.
19. The other piece of evidence on which the prosecution
relies for determination of the age is the Ossification Test report
(Exh.54). The said is proved by Dr. Ghanshyam Patil (PW5).
Dr.Patil is a Radiologist at Civil Hospital, Chandrapur. The
Medical Officer of casualty ward referred the victim to him for
conducting ossification test to determine her age. Accordingly, he
performed the ossification test and on examination, as per his
evidence, he concluded that the concerned girl appears to be of
the age in between 15 to 16 years. He states that according to
him, the girl is not less than 14 years and not more than 16 years.
20. Dr. Patil (PW5) is a Radiologist. He has not taken X
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ray of the victim. He states that it is not his duty. From the tenor
of his crossexamination, it appears that the Xray plates on the
basis of which Dr. Patil has formed his opinion were handed over
to the investigating officer. However, he admitted that the Xray
plates are not filed along with the chargesheet. Not only that, PSI
Sangita Kadam (PW6) the investigating officer has stated in her
crossexamination that she is unable to tell where the Xray plates
of the victim are lying.
21. From the evidence of Dr. Patil (PW5), it is clear that he
has not taken Xray. The person who took Xray is not examined
by the prosecution. Further, there is nothing available on record
to show that it is the only Xrays of the victim those were placed
before Dr. Patil on the basis of which he has formed his opinion
and reduced it by drawing the report (Exh.54). Therefore, in my
view, it is hazardous to rely on the testimony of Dr. Patil to
determine the age of the victim.
22. From the report (Exh.18), it is clear that the victim
was in habit of leaving the house. The victim herself has stated
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that she was knowing the appellant and she used to talk with him
and they used to meet regularly within 23 days. There is no
evidence available on record to show that under coercion the
appellant and the victim left her house. Not only that, her
evidence shows that when she was in the company of the
appellant, they stayed for 23 days at the house of the maternal
uncle of the appellant and prior to that for one night they had
stayed at village Tikhamba at the house of the friend of the
appellant. Though the victim states that the appellant established
sexual relations against her will and forcefully, the medical report
(Exh.65) does not show that the victim was having any type of
injury on her person whether on private part or anywhere on her
body. Further, even according to the victim, on the next day of
the sexual relations there was an opportunity for her to disclose
the fact to the persons with whom she came in contact. However,
till the appellant and she were apprehended by the investigating
officer, there was no disclosure on the part of the victim.
23. Dr. Jaya Bhongale (PW7) has clinically examined the
victim after obtaining her consent (Exh.20). She noticed that the
victim's hymen was torn in circumferential shape. She states that
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the hymen rupture was an old one. Not only that she has
admitted that hymen can be ruptured by any other mode than the
sexual intercourse. She further states that merely because hymen
is ruptured, it is not the conclusive proof of sexual intercourse. The
appellant and the victim were apprehended on 25.04.2015 and
the consent of the girl was obtained on 26.04.2015. In view of the
medical evidence, which the Court is required to consider only
because the version of the victim is not inspiring confidence,
shows that the doctor opined that conclusively she cannot state
that there was sexual intercourse.
24. Thus, on reappreciation of the entire prosecution case, I
am of the firm view that the prosecution was unable to come out
of the mist of suspension. The cumulative effect of reappreciation
of date of birth, according to me shows that it would be very risky
to jump to the conclusion about the date of birth. The availability
of the evidence, in my view is too sketchy rather it is highly
insufficient to curtail the liberty of the citizen.
Consequently, I pass the following order.
ORDER
(i) Criminal Appeal No.43/2018 is allowed.
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(ii) Judgment and order of conviction dated
09.01.2018 in Special (POCSO) Case No.68/2015
passed by Special Court, Chandrapur, thereby
convicting the appellant for an offence punishable
under Section 376 (1) of the Indian Penal Code read
with Section 3 punishable under Section 4 of the
Protection of Children From Sexual Offences Act, 2002
is hereby set aside.
(iii) The appellantPrashant Daulat Korwate is
acquitted of the offence punishable under Section 376
(1) of the Indian Penal Code read with Section 3
punishable under Section 4 of the Protection of
Children From Sexual Offences Act, 2002.
(iv) The appellant who is in jail shall be
released forthwith, if not required in any other crime.
JUDGE
kahale
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